Reconciling conflicting approaches to children's decision-making capacity in australian health and criminal law

Abstract

Children's decision-making is intricate, influenced by factors like cognitive development, maturity, upbringing, and circumstances. In Australia, health law recognizes children's autonomy, allowing mature minors to consent to beneficial medical treatment, yet it restricts them from making life-altering decisions against their best interests. Conversely, criminal law adopts a punitive stance, holding older children (aged 14 and above) fully accountable for their actions as adults, without considering developmental maturity or contextual factors. This creates a conflict: health law protects children's vulnerability, while criminal law imposes adult-level responsibility. This article examines whether these divergent approaches to assessing children's decisional capacity in Australian law can be reconciled. It critiques the mature minor principle in health law, which balances autonomy and protection, and contrasts it with the criminal law’s rigid age-based thresholds, such as the presumption of doli incapax for younger children. By analyzing these frameworks from a socio-legal perspective, the paper highlights inconsistencies and proposes aligning legal approaches to better reflect children's developmental immaturity, ensuring fairer treatment across both domains.